In re S.C.L., 05-04-01527-CV.

• Decision Date: 31 October 2005
• Docket Number: No. 05-04-01527-CV.,05-04-01527-CV.
• Citation: 175 S.W.3d 555
• Parties: In the Interest of S.C.L.
• Court: Texas Supreme Court

175 S.W.3d 555

In the Interest of S.C.L.

No. 05-04-01527-CV.

Court of Appeals of Texas, Dallas.

October 31, 2005.

Sharon E. Ramage, Frisco, Attorney Ad Litem.

Douglas T. Floyd, Plano, for Appellant.

Cynthia Palmer, Collin County District Attorney's Office, Katharine K. Decker, Assistant District Attorney, McKinney, for Appellee.

Before Justices MORRIS, WRIGHT, and RICHTER.

OPINION

Opinion by Justice WRIGHT.

Mark S. appeals the trial court's dismissal of his petition to adjudicate the parentage of S.C.L. In a single issue, Mark S. contends the trial court erred by determining his petition to adjudicate parentage was barred by limitations. We overrule Mark S.'s issue and affirm the trial court's order dismissing his petition to adjudicate parentage.

After the parental rights of S.C.L.'s mother and presumptive father were terminated, Mark S., S.C.L.'s biological father, sought to be adjudicated S.C.L.'s father. As S.C.L.'s "parent," Mark S. would be entitled to the presumption that he should be appointed as conservator unless it was not in S.C.L.'s best interests to do so. See TEX. FAM.CODE ANN. § 153.191 (Vernon 2002). Mark S. and the Texas Department of Family and Protective Services (TDFPS) agreed to submit this case to the trial court on written submissions, including affidavits and business records. After considering the written submissions, the trial court granted TDFPS's motion to dismiss. Subsequently, the trial court made, among others, the following findings of fact and conclusions of law:

(1) S.C.L.'s mother is Tina L.

(2) Tina L. was married to Ernest L. when S.C.L. was born.

(3) Ernest L. is named as S.C.L.'s father on his birth certificate.

(4) Ernest L. is the presumed father of S.C.L. pursuant to Section 160.204(b) of the Texas Family Code.

(5) Following a trial on the merits, Tina L.'s and Ernest L.'s parental rights to S.C.L. were terminated on September 22, 2003 and TDPRS was appointed permanent managing conservator of S.C.L.

(6) Mark S. has been named the alleged father of S.C.L.

(7) Mark S. was aware of Tina L.'s pregnancy.

(8) Mark S. filed a petition to adjudicate paternity on January 22, 2004.

(9) Mark S. filed the petition to adjudicate paternity after the four-year statute of limitations set out in section 160.607 of the Texas Family Code.

In Texas, a child born to a married woman living with her husband is presumed to be a child of the marriage. See TEX. FAM.CODE ANN. § 160.204(a)(1) (Vernon Supp.2004-05). A "presumed father" is, by operation of law under section 160.204, "recognized as the father of the child until that status is rebutted or confirmed in a judicial proceeding." TEX. FAM.CODE ANN. § 160.102(13) (Vernon 2002). This presumption may only be rebutted by (1) a proceeding to adjudicate parentage, or (2) the filing of a valid denial of paternity by the presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity. See TEX. FAM.CODE ANN. § 160.204(b) (Vernon Supp.2004-05). When, as here, there is a presumed father, a proceeding to adjudicate parentage must be commenced "not later than the fourth anniversary of the date of the birth of the child." TEX. FAM.CODE ANN. § 160.607(a) (Vernon Supp.2004-05).¹

Mark S. does not challenge that he filed his petition after S.C.L.'s fourth birthday in contravention of section 160.607.² Rather, he argues that "a literal interpretation" of section 160.607 is unconstitutional under both the United States and the Texas Constitutions because he, as the biological father, has a "natural right as to standing to seek conservatorship."³ Mark S. also contends that as S.C.L.'s biological father, he should be appointed sole managing conservator of S.C.L. "because there are no natural persons that are a conservator" of S.C.L. We cannot agree.

We begin with Mark S.'s contention that the statutory bar violates his federal due process rights. In Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989), a four-member plurality of the United States Supreme Court determined that Michael H.'s interest in establishing his parentage with his biological daughter was not constitutionally protected. Id. at 129-30, 109 S.Ct. 2333. Michael H. had an affair with Carol D. At the time, Carol D. was married to Gerald D., and she became pregnant with Victoria D. Gerald D. was listed as Victoria D.'s father on Victoria D.'s birth certificate, and Gerald D. held out she was his daughter. Although Carol D. and Gerald D. remained married, several times over the next few years, Carol D. and Victoria D. lived with Michael H. At these times, Michael H. also held Victoria D. out as his daughter. Eventually, Gerald D. and Carol D. reconciled and prevented Michael H. from seeing Victoria D. Michael H. filed suit to establish his paternity and right to visitation. The suit was dismissed pursuant to a California statute limiting rebuttal of the presumption of legitimacy to only the husband or wife. The Supreme Court determined that because relationships such as that between Michael H. and his biological child have not historically been treated as a protected family unit, Michael H.'s interest in establishing his parentage was not constitutionally protected. Id. at 121-31, 109 S.Ct. 2333. Thus, the Court determined that the California statute precluding a biological father's right to challenge paternity and limiting the presumptive father's and the mother's right to challenge paternity to two years from the child's date of birth, was a matter of legislative policy and not constitutional law. Id. at 129-30, 109 S.Ct. 2333. Because the United States Supreme Court has determined that a biological father's right to establish parentage is not constitutionally protected and statutes limiting that right are a matter of legislative policy not constitutional law, we cannot conclude Mark S.'s federal due process rights are violated by applying section 160.607(a).

We reach a similar conclusion with respect to Mark S.'s rights under the Texas due course of law guarantee. The Texas Constitution guarantees standing to a biological father who asserts his interest in establishing a relationship with the child near the time of the child's birth if he (1) acknowledges responsibility for child support or other care and maintenance and (2) makes serious and continuous efforts to establish a relationship with the child. In the Interest of J.W.T., 872 S.W.2d 189, 195 (Tex.1994). The record in this case shows that although he knew of Tina L.'s pregnancy, Mark S. did not assert his interest in establishing a relationship with S.C.L. near the time of S.C.L.'s birth, nor did he thereafter make serious and continuous efforts to establish a relationship with S.C.L. Consequently, we cannot conclude applying section 160.607(a) violates his state due course of law guarantee.

To the extent Mark S. argues that section 160.607(a) does not apply to him because Ernest L.'s parental rights to S.C.L. have been terminated, again we disagree. S.C.L. was born during Tina L. and Ernest L.'s marriage. S.C.L. was therefore presumed to be a child of the marriage. See TEX. FAM.CODE ANN. § 160.204(a)(1). This presumption may be rebutted only by (1) a proceeding to adjudicate parentage, or (2) the filing of a valid denial of paternity by the presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity. See TEX. FAM.CODE ANN. § 160.204(b). The termination of Ernest L.'s parental rights was not effectuated through a proceeding to adjudicate parentage or by the filing of a denial of paternity in conjunction with a valid acknowledgment of paternity. Thus, contrary to Mark S.'s contention, termination of Ernest L.'s parental rights did not somehow rebut or disestablish the presumption of...